Citation Nr: 9831267
Decision Date: 10/21/98 Archive Date: 10/26/98
DOCKET NO. 97-29 922 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to a compensable evaluation for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. L. Wright, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1967 to
August 1988.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from an August 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma which denied the benefit sought on appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his bilateral hearing loss is more
severely disabling than currently evaluated. In support of
this contention, he asserts that his hearing was perfect upon
entrance but that exposure to jet engines and gun blasts has
led to deteriorating hearing. He also relates that the VA
has issued him hearing aids and that he had to obtain a
hearing loss waiver when seeking employment with the federal
government. His representative further argues that the
veteran should prevail under application of the benefit of
the doubt rule. Therefore, a favorable determination has
been requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against a compensable evaluation for bilateral
hearing loss.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s
claim has been obtained by the RO.
2. The veteran has Level I hearing acuity in his left ear,
and Level IX hearing acuity in his right ear.
CONCLUSION OF LAW
The schedular criteria for a compensable evaluation for
bilateral hearing loss have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.85, 4.87,
Diagnostic Code 6100 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A veteran who submits a claim for benefits under laws
administered by VA shall have the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded. See
38 U.S.C.A. § 5107(a) (West 1991). An allegation that a
service-connected disability has become more severe is
sufficient to establish a well-grounded claim for an
increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381
(1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
Accordingly, the Board finds that the veteran’s claim for an
increased evaluation is well grounded.
Once a veteran has presented a well-grounded claim, VA has a
duty to assist him in developing facts that are pertinent to
the claim. See 38 U.S.C.A. § 5107(a). The Board finds that
all relevant facts have been properly developed, and that all
evidence necessary for an equitable resolution of the issue
on appeal has been obtained. Therefore, no further
assistance to the veteran with the development of the
evidence is required.
Disability ratings are determined by evaluating the extent to
which the veteran’s service-connected disability adversely
affects his ability to function under the ordinary conditions
of daily life, including employment, by comparing his
symptomatology with the criteria set forth in the Schedule
for Rating Disabilities (rating schedule). 38 U.S.C.A.
§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (1998). Where
entitlement to compensation has already been established and
an increase in the disability rating is at issue, it is the
present level of disability that is or primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Historically, a December 1988 rating decision granted service
connection for bilateral hearing loss on the basis of service
medical records and a VA examination which showed the veteran
had hearing loss. A noncompensable evaluation was assigned,
and that evaluation has remained in effect since that time.
When the veteran perfected his substantive appeal in
September 1997, he asserted that the noncompensable
evaluation assigned for his service-connected bilateral
hearing loss did not adequately reflect the severity of his
impairment. He stated that, at present, he cannot carry on a
normal conversation without his hearing aids, that he had to
get a waiver before obtaining employment with the federal
government and that VA had agreed with the issuance of his
hearing aids.
The veteran was afforded a VA audiological evaluation in
August 1996. Pure tone thresholds for this examination, in
decibels, were as follows:
HERTZ
1000
2000
3000
4000
AVG
RIGHT
50
55
60
65
58
LEFT
10
20
50
60
35
The veteran had speech recognition ability of 40 percent in
the right ear and of 100 percent in the left ear.
The veteran also submitted the report of a private
audiometric evaluation performed in August 1996. However,
this evaluation does not contain all of the clinical findings
necessary to evaluate the veteran’s disability under the
Schedule for Rating Disabilities. For example, no puretone
threshold was reported at 3000 Hertz. Consequently, this
evidence is insufficient to evaluate the veteran’s disability
Evaluations for bilateral hearing loss range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average hearing
threshold levels as measured by pure tone audiometry tests in
the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per
second. To evaluate the degree of disability from bilateral
hearing loss, the rating schedule establishes 11 auditory
acuity levels, designated from level I for slightly impaired
hearing acuity through level XI for profound deafness. See
38 C.F.R. § 4.85, Diagnostic Codes 6100 to 6110 (1997).
Further, "disability ratings for hearing impairment are
derived by a mechanical application of the rating schedule to
the numeric designations assigned after audiometric
evaluations are rendered." Lendenmann v. Principi, 3 Vet.
App. 345 (1992)
Applying the criteria found in 38 C.F.R. § 4.87 at Table VI
to the veteran’s examination results yields a numerical
designation of IX for the right ear (between 58 and 65
average puretone decibel hearing loss, with between 36 and 42
percent speech discrimination). The examination results
yields a numerical designation of I for the left ear (between
0 and 41 average puretone decibel hearing loss, with between
92 and 100 percent speech discrimination). Entering the
category designations for each ear into Table VII results in
a noncompensable disability evaluation under Diagnostic Code
6100. Accordingly, the Board can only conclude that the
veteran’s bilateral hearing loss was properly assigned a
noncompensable evaluation under Diagnostic Code 6100; hence,
an increased evaluation is not warranted.
The Board acknowledges the veteran’s allegation that a
compensable evaluation is warranted due to an increased
difficulty hearing conversational voices, and the need to
utilize hearing aids. Evaluations derived from the rating
schedule, however, are intended to properly allow for
improvement through hearing aids. See 38 C.F.R. § 4.86. In
other words, the necessity of having to wear hearing aids
does not influence the assigned evaluation.
The Board also considered the applicability of the benefit-
of-the-doubt doctrine, as asserted by the veteran’s
representative, but as there was no approximate balance of
positive and negative evidence on record, reasonable doubt
could not be resolved in the veteran's favor. See 38
U.S.C.A. § 5107(b).
ORDER
A compensable evaluation for bilateral hearing loss is
denied.
RAYMOND F. FERNER
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -